City Council on Art, DDA: Status Quo Is OK

Also: Council debates merits of 4-to-3 lane conversion on Jackson

Ann Arbor city council meeting (April 2, 2012) Part 2: At a long meeting that stretched until midnight, the council handled multiple items involving direction to city staff – one of which was related to enforcement of medical marijuana laws. All medical marijuana issues from the meeting are covered in Part 1 of The Chronicle’s meeting report.

Tony Derezinski (Ward 2) and Jane Lumm (Ward 2)

Ann Arbor city councilmembers Tony Derezinski (Ward 2) and Jane Lumm (Ward 2). (Photos by the writer.)

Neither of the other two resolutions involving direction to staff got much support on the council. Failing on a 3-7 vote was a resolution that would have directed the city attorney to provide a written opinion on the transfer of funds from the city’s street millage fund to the public art fund. The resolution got support only from its sponsors, Stephen Kunselman (Ward 3) and Sabra Briere (Ward 1), who were joined by Mike Anglin (Ward 5). The council postponed a separate item that would have authorized $150,000 for a piece of art that the public art commission has recommended for the lobby of the new Justice Center.

Failing on a 4-6 vote was a resolution related to the Ann Arbor Downtown Development Authority. It directed city staff to “to review, analyze, and report on the compliance of the DDA provided TIF calculation and capture amount” – an issue that relates to excess capture of taxes identified last year. The three who supported the resolution requesting an opinion on public art were joined by Jane Lumm (Ward 2) in supporting the TIF resolution. Only 10 councilmembers attended the meeting – Marcia Higgins (Ward 4) was absent. But even if Higgins had voted for the two resolutions, they still would have failed.

Generating some controversy were two items involving automobiles. The council gave final approval to changes in parking regulations that include a provision allowing the developer of a downtown project to meet minimum parking requirements without building parking spaces on site. The alternative is to make a payment in lieu of building parking spaces, or to sign a long-term contract to purchase monthly parking permits in the public parking system. Anglin voted against the ordinance change as well as the specific policy governing the payments in lieu of parking.

On another automobile-related item, Anglin was joined by Lumm in opposing a resolution that made a formal request to the Michigan Dept. of Transportation to convert a segment of Jackson Road between Maple Road and South Revena from four traffic lanes to three. That request will move forward. In another road-related item, the council unanimously approved a $3,647,344 construction contract for the first set of streets to be repaired in the 2012 program. That will be followed at the council’s next meeting, on April 16, by a second contract for an additional set of streets.

The council also gave approval to three different site plans – for Arbor Hills Crossing on Washtenaw Avenue, Les Voyageurs near Argo Pond, and Noodles & Co. on West Stadium Boulevard.

Public commentary at the end of the meeting featured several speakers who called the council’s attention to April as Sexual Assault Awareness Month.

Public Art Legal Opinion

In front of the council for its consideration was a resolution that would have directed the city attorney to provide a written legal opinion on the transfer of funds from the dedicated street millage fund for use in the city’s public art program. In a separate item, the council voted to approve the first part of the 2012 street resurfacing program, which is funded out of the street millage fund.

Public Art Legal Opinion: Background

The city’s Percent for Art ordinance stipulates that 1% of all capital project budgets be allocated for public art, up to a limit of $250,000 per capital project. The legal basis for the program, which relies on taking monies from dedicated millages and fees to serve the purpose of public art, has been sharply questioned.

Since being hired as city attorney, Stephen Postema has bypassed the Ann Arbor city charter requirement that written legal opinions be filed with the city clerk (thus making them public) by contending that his written opinions are “advice memos” and thus not technically opinions. The city responds to requests under Michigan’s Freedom of Information Act for the content of such advice memos by asserting attorney-client privilege.

By Ann Arbor city charter, the city attorney is under the direct supervision of the city council. So the resolution considered by the council would have forced Postema to produce a written opinion. The resolution was brought forward by Stephen Kunselman (Ward 3) and co-sponsored by Sabra Briere (Ward 1). [For additional background, see: “Council Preview: Marijuana, Art, TIF.”]

Public Art Legal Opinion: Deliberations

In his remarks introducing the resolution, Stephen Kunselman (Ward 3) proceeded to read it aloud in its entirety. Sabra Briere (Ward 1) wondered if that were necessary, but mayor John Hieftje indicated that if Kunselman wanted to use his time-limited speaking turn to read it aloud, he could do that. Kunselman asked Briere playfully, “Do you mind?” and indicated that he knew he just had five minutes. He then read the rest of the resolution.

Jane Lumm (Ward 2) questioned whether the amount of time allotted to the city attorney was adequate to produce the opinion – the resolution specified delivering the opinion by April 16. Kunselman responded to Lumm by saying he felt that the attorney already had the material prepared.

Lumm said her concerns with the public art program were not so much legal concerns but rather a matter of steering capital dollars away from the projects they are supposed to be funding. She noted she wasn’t on the city council when the ordinance was approved [in 2007], but she believed that the city attorney was consulted and provided advice on the ordinance at the time.

Briere observed that for at least two years, the council has regularly heard concerns about whether the funding mechanism for the public art program is legal. The city attorney has said he can only provide a written opinion if the council requests one, she noted. So she was co-sponsoring the resolution – in order to put the issue to rest. “Let’s either ask him to give us a written opinion, or we vote this down,” she said.

Christopher Taylor (Ward 3) said that he’d vote against the resolution. An opinion does not mean “the thoughts of an attorney.” In this context, he said, it’s intended for third-party reliance. In his view, the council had received advice from the city attorney on the topic, and he said he was satisfied with it. He felt there is no reason for having a formal opinion for third-party reliance. The notion of “jumping the gun” on something like this is not appropriate for the context, he said.

Tony Derezinski (Ward 2) supported Taylor’s contention that the opinion was not necessary. He then went on to describe how there have been opinions before with respect to components of the ordinance. He said he was not on the city council when the ordinance was approved, but didn’t feel it was necessary to ask for “yet another opinion.” So he was going to oppose the resolution.

City attorney Stephen Postema was quick to jump in to disagree with Derezinski’s statement, saying that he hadn’t provided any opinions, but rather advice. [It's critical for the city attorney not to call his written advice an "opinion" because the Ann Arbor city charter requires that written "opinions" be filed with the city clerk's office, thereby making them public.]

Margie Teall (Ward 4) said she was satisfied with the material she’d received and the information she already had.

Mike Anglin (Ward 5) said that as councilmembers they were involved with these issues, they understood the issues. But he said he’d wanted some backup for his support of the Percent for Art program. By voting for an opinion to be written, it was allowing the voters and taxpayers of the city to understand the Percent for Art program better. He felt that would be something the council should want to do.

In support of what Anglin said, Briere observed that often the public asks the council: Why did you make that decision? The reason for asking that an opinion be written is not that councilmembers are doing it for themselves – it’s for the public. Some things are more contentious than others, she said, and the public art funding mechanism has been contentious. Asking for a written opinion is not for the council, but rather for the public. A decision about whether to ask for an opinion should be based on two things, she said: (1) Does the council think it benefits our role as members of council? and (2) Do we think it benefits the public?

Kunselman said he wanted to make clear he didn’t recall ever receiving an advice memo on the transfer from a dedicated millage account to the public art fund. So for councilmembers who are saying they’re satisfied, he said, Tuscola County had publicized a document as part of a voter information program in advance of a millage stating that it wasn’t possible to transfer money out of a dedicated millage fund to any other account. Kunselman ventured it might be possible to pay for art out of the street millage fund, but you just can’t transfer it to another fund. He felt there are some fine details in there that should be clarified. The question of whether it’s legal or not to transfer money out of a dedicated millage account is a simple question, he said, and the public deserves an answer.

Carsten Hohnke (Ward 5) said the council had received clear input from the city attorney on issues surrounding public art and he said he was satisfied with that. The purpose of an opinion is nothing more than to give third parties a formal understanding of how they might be impacted by the city’s orientation to particular legal issues. Even if the issue were about reassuring the public, he said, “that ship has sailed.” That would have been an appropriate conversation to have when the council was considering implementing the Percent for Art program [in 2007]. He said that as he talked with people, he’s gotten a lot of reassurance from people when he’s told them that the council has received very clear advice on the public art.

Lumm said she’d come to this late, but that to a latecomer it was clear that the city attorney had been consulted. She felt that if it were considered illegal then the council would not have approved the ordinance. She felt like the issue had been addressed.

Outcome: The resolution failed on a 3-7 vote, with support from Sabra Briere (Ward 1), Stephen Kunselman (Ward 3) and Mike Anglin (Ward 5).

Justice Center Art

The council was asked to vote on the use of $150,000 for a public art project in the lobby of the new municipal building called the Justice Center, located on the northeast corner of Huron Street and Fifth Avenue in downtown Ann Arbor. The Justice Center, located next to city hall, houses the 15th District Court and the Ann Arbor police department.

Rendering of "Radius" sculpture

A rendering of Ed Carpenter’s proposed “Radius” sculpture in the southwest corner of Ann Arbor’s Justice Center lobby. This image was revised from earlier drawings by the artist to include more glass, at the request of a selection task force. (Links to larger image)

Because it houses the district court, the building features airport-style security measures at the entrance, and visitors must surrender electronic devices like cameras and cellphones to be locked in cubicles during their visit to the building.

Concern about accessibility by the public to the public art was the subject of councilmember deliberations. The visibility of the proposed sculpture from outside the building was also a point of discussion.

At its Jan. 25, 2012 meeting, the Ann Arbor public art commission had unanimously recommended selecting Ed Carpenter of Portland, Oregon for the $150,000 project in the Justice Center’s lobby. A task force had recommended the selection of Carpenter’s proposal from three finalists. It’s a sculpture called “Radius.”

Carpenter plans to create a hanging sculpture of dichroic glass, aluminum, stainless steel and lighting, including LED spot and flood lighting. Among the reasons for recommending Radius, the task force cited the sculpture’s metaphor: That the activities in the Justice Center have a “rippling” effect throughout the community, which echoes the water sculpture by Herbert Dreiseitl that’s located in the plaza outside the building.

At the council’s April 2 meeting, public art administrator Aaron Seagraves described the piece of art.

Sandi Smith (Ward 1) called the design “cool,” but she had concerns about the area not being accessible to the public. She wanted to know if the idea had been considered to move the security gates back into the building so more people can access the lobby.

City administrator Steve Powers indicated that the ability to move the security gates is tied to the overall building project budget. There’ll be a report soon to the council’s building committee on the project budget, he said, and at that point there could be a more informed decision about moving the security systems. There are budgetary impacts to that. Craig Hupy, interim public services area administrator, described the financing information as close to being wrapped up and almost ready for discussion.

Smith said she didn’t feel really strongly about tying approval of the art to the moving of the security gates, but wondered if there were any harm in postponing until that discussion is held? Hupy said he didn’t think so. The art was anticipated to be completed by the end of December. At some point the artist’s proposal would have to be reviewed for changes due to inflation. If it’s a matter of 30-60 days, he didn’t think it would have an impact. Because Smith felt the discussion was fairly imminent, she was inclined to delay for a month. Seagraves didn’t have a problem with that.

Mayor John Hieftje agreed with taking the time to think about it some more. He’d looked at the location with Sabra Briere (Ward 1) and while he felt that the public art commission had done a good job in designing something that would be visible from outside the building, it would be nicer if the lobby could be opened up to the public. That should be investigated, he said. The issue of the placement of security should be revisited, he concluded.

Jane Lumm (Ward 2) also supported the postponement. She felt that going forward, public art decisions should include the idea of access to the public.

Briere said she supported the postponement but really supported the opportunity to review the security checkpoint. She reminded the council that people who’d selected the art believe that it’s to be viewed from outside the building, rather than from within the building. It’s a beautiful open space that should be used for meetings, weddings, parties, and receptions – the things that civic spaces should be used for. But because of measures that are there to protect the community, the public had lost access to the space.

Hieftje said it did muddy the issue of the art, which was being delayed while the council took a look at the security issue, but he stressed that the public art commission and the task force for the piece of art had done a good job.

Margie Teall (Ward 4) indicated support for the postponement, but said she’d had very complete discussions with the building’s architect about what the security would entail. She felt it was already decided that there wasn’t a lot that could be done. She was on the committee to select the art and the placement. The committee felt that the corner of the building needed to be enlivened from the outside. She said that if people want to see the art, they can go through security and view it, or stand outside and look at it. She didn’t want people to get their hopes up about moving the security checkpoint or tying that to the art.

Mike Anglin (Ward 5) clarified that it’s possible to get buzzed into the lobby by the police after hours, and ventured that once they let you in, it’s “unsecured.” Hupy said he didn’t know if people were tracked once they came in. Teall supposed that at night the best place to see it would be from outside.

Tony Derezinski (Ward 2), who also serves on the public art commission, said he felt there was a consensus about the validity of the art project. He felt that it’s important to convey that message back to the public art commission, and he’d support the postponement because it wouldn’t hurt the project. He felt the artwork would add beauty to the building.

Stephen Kunselman (Ward 3) said he’d also support the postponement. But he responded to the talk about how the sculpture will be viewed from outside by wondering if the artist could show the etched glass on the window as part of the nighttime rendering. He didn’t feel it would be visible with the clarity that was being portrayed, and that it would be obscured.

Lumm said she’d support postponement, but said she was not comfortable with siting it in the Justice Center building, even with adjustment of the security checkpoint. She described the spending on the building as extravagant. She was troubled that “we’re spending it on ourselves.” She wondered if this is the best use of public dollars. She wanted some clarification about how much of the artwork’s budget was going to fabrication and whether the fabrication would be done locally, given that the selected artist is from Portland.

Outcome: The council voted unanimously to postpone the vote on the $150,000 Justice Center artwork. The postponement will be until May 7.

DDA TIF Capture

The council was asked to consider a resolution that would have directed city staff to verify the compliance of the Ann Arbor Downtown Development Authority with the city’s ordinance that governs how the DDA’s tax capture works.

DDA TIF Capture: Background

When city financial staff pointed out the implications of the city ordinance in May 2011, the result was a computation of excess TIF (tax increment finance) capture of over $1 million. The city of Ann Arbor waived its share, which amounted to $712,000, but the other taxing authorities in the district (Ann Arbor District Library, Washtenaw Community College and Washtenaw County) received a total of $473,000 in reimbursement for last year and previous years.

The DDA board’s current legal position, subsequently adopted, is that it had not been necessary to return the money to the other taxing authorities in its district, but the board has not pressed for return of that money to the DDA.

For this year and into the future, the interpretation of the ordinance and the method of calculation will have an impact of several hundred thousand dollars a year in the amount of taxes the DDA could rightfully capture from other taxing authorities in its district. [See “Column: Tax Capture Is a Varsity Sport”]

In relevant part, the ordinance passage from Chapter 7 reads [emphasis added]:

If the captured assessed valuation derived from new construction, and increase in value of property newly constructed or existing property improved subsequent thereto, grows at a rate faster than that anticipated in the tax increment plan, at least 50% of such additional amounts shall be divided among the taxing units in relation to their proportion of the current tax levies. If the captured assessed valuation derived from new construction grows at a rate of over twice that anticipated in the plan, all of such excess amounts over twice that anticipated shall be divided among the taxing units. Only after approval of the governmental units may these restrictions be removed. [.pdf of Ann Arbor city ordinance establishing the DDA]

By way of general background, a tax increment finance (TIF) district is a mechanism for “capturing” certain property taxes to be used in a specific geographic area – taxes that would otherwise be received by the entity with the authority to levy the taxes. So in the DDA’s TIF district, the DDA doesn’t levy taxes directly. Rather, a portion of the property taxes that would otherwise be collected by taxing units (like the library, community college and the county) is instead used by the Ann Arbor DDA for improvements within its boundaries, covering about 66 city blocks downtown.

For additional background specific to the current situation, see “Council Preview: Marijuana, Art, TIF.”

DDA TIF Capture: Deliberations

Stephen Kunselman (Ward 3) summarized the background on the DDA TIF capture issue. After describing the situation, he then ventured that having the DDA verify its own compliance was like having the fox guard the henhouse.

Sabra Briere (Ward 1) said that sometimes she and Kunselman did agree on things, and in this case it looked to her like this was a matter of “Show your math.” She felt that it would not make a difference to the DDA, and given that she didn’t think it would make a difference to the DDA, it will be a reassurance that nothing has been forgotten this year. She said she was okay with asking that the math be shown.

Sandi Smith (Ward 1), who also serves on the DDA board, said it seemed to her like the council was doing a lot of directing of staff through resolutions when staff can do it through a request by email. She said she was just confused about the “litany of demands” that the staff perform something when they hadn’t simply been asked whether or not they’d do it. She looked at it as a time-waster and wondered if there weren’t something else that the council should be doing instead – she introduced the possibility of changing the relevant ordinance [Chapter 7]. That would be legitimate, Smith said. She found that if a simple request [not through a resolution] were made of staff, they’d be good at providing the information to the council.

Jane Lumm (Ward 2) said she’d support the resolution, but distanced herself from Kunselman’s general view of the DDA’s role in the city.

Outcome: On a 4-6 vote, the resolution failed with support only from Sabra Briere (Ward 1), Jane Lumm (Ward 2), Stephen Kunselman (Ward 3), and Mike Anglin (Ward 5).

Street Resurfacing Program

A resolution on the April 2 agenda asked the council to award a $3,647,344 construction contract for its 2012 street resurfacing program to Barrett Paving Materials Inc. The engineer’s estimate for the project was $3,850,835. Barrett’s was the lowest of three bids. Ajax Paving Industries Inc. had bid $3,757,748 and Cadillac Asphalt LLC had bid $4,029,089. The money for the project comes primarily from the city’s street resurfacing millage. This is the first of two contracts that the council will be asked to approve – the next one with additional streets will be presented to the council at the April 16 meeting.

Ann Arbor 2012 Street Resurfacing Program

Ann Arbor 2012 street resurfacing program. Image links to Google Map.

The 2012 resurfacing program includes the following major streets: Huron Parkway (Hubbard Street to Glazier Way); Fifth Avenue (Huron Street to Liberty Street); Liberty Street (Seventh Street to First Street); Glen Street (Huron Street to bridge over railroad tracks); and Geddes Avenue (Awixa Road to Apple Way).

The 2012 resurfacing program also includes the following local streets: Pineview Court (Riverview Drive to the end of Pineview); Canal Street (end to end); William Street (Fourth Street to Ashley Street); N. Fifth Avenue (Depot Street to Beakes Street); Fourth Street (William Street to Liberty Street); Third Street (William Street to Liberty Street); David Court (Traver Boulevard to end); and Hatcher Crescent (Miller Ave to Hatcher Street).

Street Resurfacing: Council Deliberations

Jane Lumm (Ward 2) led off the deliberations by asking Homayoon Pirooz, head of project management for the city, how the streets were selected for inclusion in the program. Pirooz described a rating system used by the field services department – from 1-100 – but he said no street was ever at the very bottom of the scale. Any street less than 70 was put on a list and around October of each year, the streets rated less than 70 are driven to confirm that they need to be included. Around this time of year, in the spring, the staff might recognize that a street rated 71 or 72 might also need to be added to the list. After publication of the list this year, he said, they’d heard from members of the public and added some streets to the list on that basis.

Jones Drive was one that wasn’t on the list initially, but had been added. There was a plan to replace the water main and after contacting the water utilities department, they’d learned that plan had changed, so it could be resurfaced. He’d also had a request to look at Forest, Pirooz said. That street also seems to need the work, and a decision will be made in the next few days. The contract they’d vote on that night was Group A. In two weeks, there’d be another 20 streets in Group B.

Lumm asked if the city was biting off a big chunk of those that are rated less than 70. Pirooz said that by 2013, after this current cycle, there would be additional streets that are rated less than 70. Overall, he said, over the last eight or nine years, the city is gradually improving the condition of its streets. But right now, he said, the city is not resurfacing many of its streets that are rated more than 70.

Margie Teall (Ward 4) asked for confirmation from Pirooz that the money being spent on resurfacing this year would have been spent on the East Stadium bridges project, if the federal money had not come through. Pirooz explained that for the last two or three years, the city had been very careful about expending money from the street millage, just in case the city had to undertake the Stadium bridges repair by itself, with no federal aid. That turned out not to be the case. The city had received $13 million in federal aid, so the city was able to accelerate its street repair project.

Lumm responded to the political point Teall was making by recalling her prior service on the council, when the city had set aside money to repair the two Broadway bridges and did work on the Huron Parkway bridges plus a lot of streets. She said that the city was able to do that with federal money, state money and local street millage dollars – because that’s the way it’s typically done. What’s being done with Stadium bridges is not unique – it’s a matter of making it a priority, she contended. All along the city could have done both, she said.

Pirooz responded to Lumm by saying there was a lot less transportation available now than five or ten years ago. When the Broadway bridges were in the planning stage, he said, he thought the city had received close to $19.5 million through the state’s local bridge program. For the Stadium bridges, the city had receive only around $2 million. There’s been a substantial change in the amount of money the state had available. Lumm allowed it was a point well taken.

Sabra Briere (Ward 1) complimented city staff on their responsiveness on the Jones Drive issue. On the Stadium bridges issue, Briere said she remembered reading how some people felt the city should go ahead and take on the reconstruction using local dollars, but the city had instead pursued federal dollars. The city was ultimately successful but it took time – time during which the public became impatient. It was desirable, she said, for the staff to conserve the street millage dollars for the last few years as a contingency for the possibility that federal dollars didn’t materialize.

Stephen Kunselman (Ward 3) said he vaguely remembered the city missing out on the first round of TIGER grants because the city did not have a shovel-ready project for which it could apply. Pirooz said that wasn’t entirely true. The city did have a shovel-ready project, but the federal government had other priorities, he said. Kunselman expressed interest in adding to the list some streets in “my neck of the woods.” Pirooz said that the city likely had the money, but perhaps not the time. Kunselman told Pirooz he was referring to the Springbrook subdivision.

Mayor John Hieftje then reviewed the same historical material on the Broadway and Stadium bridges that Lumm, Briere and Pirooz had already reviewed.

Related to that, Pirooz reported that the Stadium bridges project is about a month ahead of schedule.

Outcome: The Group A contract for the 2012 street repair program was unanimously approved.

Jackson Road: From Four to Three Lanes

The council considered making a request to the Michigan Dept. of Transportation to convert the segment of Jackson Road between Maple Road and South Revena from four traffic lanes to three.

Jackson Road: Background

The request to MDOT will be shared with the Southeast Michigan Council of Governments (SEMCOG) and the Federal Highway Administration (FHWA). If the FHWA were to approve the proposed lane conversion, it would be implemented by MDOT, when the length of Jackson Road is resurfaced by MDOT from the I-94 interchange to Main Street in downtown Ann Arbor. That project is scheduled for 2013 or 2014.

Segment of Jackson Road recommended for 4-to-3 lane conversion

Segment of Jackson Road recommended for 4-to-3 lane conversion. Image links to Google Map.

Benefits of the lane conversion cited in a staff memo accompanying the resolution include: (1) safe deceleration in the middle lane for left turns; (2) elimination of lane weaving; (3) uniform speeds and the resultant traffic-calming effect; (4) reduction in number and severity of crashes in a number of categories; (5) potential extra width for bicycle lanes; and (6) potential creation of additional marked pedestrian crossings.

The memo mentions several successful 4-to-3 lane conversions in Ann Arbor: South Main (Ann-Arbor Saline to Eisenhower); Platt (Packard to Ellsworth); Packard (Stadium to Jewett); Huron Parkway (Nixon to Plymouth); West Stadium Boulevard (Seventh to Pauline); and Green (Plymouth to Glazier Way). All of those segments have an average daily traffic (ADT) flow of less than 15,000.

Roadway segments with greater than 15,000 ADT, like Jackson Road with 15,500, require a greater level of analysis and public involvement. And to that end MDOT held a public meeting at Slauson Middle School on Feb. 2, 2012.

Jackson Road: Deliberations

Mike Anglin (Ward 5) noted that the project would not be done until 2013 or 2014. He said it had been described to him as simply changing the painted lines on the street. He contended that public input was limited. He said that Liberty had been reworked and reduced in size but characterized it as “not a major carrier.” Once you exceed the 15,000 ADT threshold, a 4-to-3 lane reduction requires more analysis, he noted, and the section of Jackson in question is right on the limit – with 15,500 ADT. He pointed out that there would be buses on the street.

Anglin noted that Dexter Avenue was being redone this year with bicycle lanes and that Miller Road was scheduled to be done with bicycle lanes next year, so he felt there will be enough entrances and exits into the city for bicyclists within two blocks. He described Jackson as an extremely dangerous road due to the number of vehicles. He allowed that he was initially in favor of the lane change, but as he thought more about it, he was afraid it would result in putting people into situations that aren’t as safe as he’d like. It would be asking drivers to be acting quickly to reduce lanes. He contended that the more challenging a road layout is, the more difficult it is for drivers to maneuver and to watch for cyclists.

He floated the idea of postponing the motion. The road won’t be wider, he said. He criticized what he called not enough public input on the project.

Sabra Briere (Ward 1) asked Homayoon Pirooz of the city’s project management unit to come to the podium. She asked why it was advisable to reduce from four lanes to three on a “trunkline.” Pirooz explained that it’s not a matter of whether it’s a trunkline, but rather it’s the number of cars that determines how many lanes are needed. He described how four-lane roads were very common 30-40 years ago. Traffic engineers have found that’s not the best configuration. He described the reduction of conflict points that results from a reduction from four to three lines.

As an example, he pointed to Platt Road, which was reduced to three lanes. Residents, he said, had a lot of concerns about that, before it was implemented, thinking they wouldn’t be able to get onto the road from sidestreets. Looking at the data for accidents, he said, the number of accidents per year was 20-30 per year. But in the last two years it’s down to 6-7. The number of cars on that stretch is 14,000. That compares with 15,500 along the stretch of Jackson Road under discussion.

The city asked MDOT to do the traffic analysis and modeling, and that was presented to the public. Based on MDOT’s own analysis, it’d be relatively easily to do a 4-to-3 lane conversion, Pirooz said. He explained that the reason the city had asked MDOT to do the analysis was that the existing lanes on that stretch are very narrow – they’re 10 feet wide. MDOT won’t build roads with lanes that narrow any more – the minimum is 11 feet and the preference is 12.

Carsten Hohnke (Ward 5) said he lived near the area and could confirm the narrowness of lanes, and said that narrowness is a concern for a lot of people. Hohnke noted that the four-to-three lane reduction would even out the traffic flow, allow for deceleration, and possibly add bike lanes – that sounds too good to be true, he said. He said he understood that the staff feels the benefits outweigh the costs, but he wanted to know what the costs were – congestion, air quality?

Pirooz allowed there are no guarantees for anything. He said staff is 95% confident that this will work. It’s planned for resurfacing for 2013 or possibly 2014. Once the street is paved, that’s the time to do lane markings. With all projects, he said, staff goes back one year later, and if ever a project like that doesn’t work, it’s as easy to change as grinding off the old paint and putting new paint down.

Hohnke drew out the fact that there could be some additional queuing time, but not that much.

Lumm came back to the issue of the traffic load of the segment of Jackson Road. She noted that in response to a question she’d asked before the meeting, the ADT was projected to be 18,500 in 18 years. She wondered if the city would be looking back then, wondering why this change was made. Pirooz noted that the current level is 15,000 ADT, which is closer to 15 than 20 – and the 18,500 projected in 18 years is still less than 20,000. By then, Pirooz said, the city would be looking at another resurfacing at that time. If you have to change it after 15 years, he said, that’s the nature of traffic engineering.

Mayor John Hieftje and Briere both mentioned the fact that the lane changes are reversible. In an apparent bid to wrap up discussion, Christopher Taylor (Ward 3) noted that he himself is not a traffic professional, but the city’s traffic professionals say that there are safety benefits, it’ll be reviewed in a year, and it’s fully reversible – so he’d be supporting the resolution.

Stephen Kunselman (Ward 3) wondered if the impact on the Platt Road change had been to cause motorists to find alternative routes – he felt like traffic on Platt was lighter since the 4-to-3 conversion. Pirooz told him there hadn’t been a decrease.

Anglin asked about accidents along the stretch. He also pointed out that the decision would affect a lot of people who don’t live in Ann Arbor, who are using the road to come into town.

Outcome: The 4-to-3 lane reduction resolution was approved over the opposition of Mike Anglin (Ward 5) and Jane Lumm (Ward 2).

Immediately after the vote Thomas Partridge, called out from his seat in the audience, saying the vote was “unbelievable,” which prompted Hieftje to tell him to be quiet.

Parking Ordinance

At its April 2 meeting, the Ann Arbor city council gave final approval to changes to the city’s off-street parking code.

Parking Ordinance: Background

The first change reduces the exceptions allowed for front open-space parking for sites that have more than one front lot line. Currently, a site with three frontages can have a parking area for two of the frontages – between the building face and the public right of way. The code revision would limit parking areas to a single frontage.

The second change requires that any new driveways serving drive-up windows in the front open space of a site be no wider than 12 feet and provide a raised sidewalk with bollards where the sidewalk crosses a drive-up lane. The change is meant to improve pedestrian safety.

The third change relates to minimum off-street parking requirements in the downtown districts, zoned D1 and D2. Developers currently have the option of making a payment in lieu of providing the required parking. The revision to the ordinance would add the option of signing a contract for parking permits in the city’s public parking system.

During the public hearing, Thomas Partridge called the amendments unclear and confusing. He contended that they deny property owners the ability to use the area in front of their property for parking.

Parking Ordinance: Deliberations

Sabra Briere (Ward 1) led off deliberations by asking for the projected impact on existing and prospective construction. Planning manager Wendy Rampson described the proposed changes in the context of the relatively new area, height and placement revisions (AHP) in the zoning code. In the context of reduced setback requirements for AHP, the proposed amendments were a way to preserve the remaining green space and to prevent it from becoming all driveway. Most existing drive-throughs are not an issue, she said. It’s really just the new proposals – like the like Tim Hortons site plan that would come before the council in a couple of weeks.

City Administrator Steve Powers (left) and Mike Anglin (Ward 5).

City administrator Steve Powers (left) and councilmember Mike Anglin (Ward 5).

Mike Anglin (Ward 5) said he had a lot of concern about the arrangement by which a developer could contract for spaces in the public parking system. He alluded to a proposed development at 618 S. Main, for which the developer is proposing to build two floors of parking – twice the amount required. He felt the city shouldn’t allow the use of public parking spaces to satisfy the minimum requirement. This is not a good thing as far as he was concerned. He contended that it was tantamount to public bonding.

Rampson explained that when the A2D2 zoning changes were adopted, there were options provided to meet the minimum parking requirements through an easement, or through a formula. Contracting for parking permits is one option that a developer can take that may or may not make sense, she said. In the case of the proposed 618 S. Main project, it doesn’t make sense to the developer, so he’s opted to provide parking on site. One of the benefits to contracting for monthly permits is that it assures a revenue stream for the parking structures, Rampson said. The policy that the council would be considering later in the meeting, as a separate agenda item, allows for the Ann Arbor Downtown Development Authority to determine whether parking is available within the public system. It’s not mandatory that the DDA grant the permits, if not enough spaces are available.

Anglin asked Rampson to give an example of a building that has provided its own parking and is successful. Rampson offered Zaragon Place, located on East University. Susan Pollay, executive director of the DDA, described the special parking permits that are available to downtown residents – the permits cost $30 a month, which allows residents to use the system in an “off-peak way.” She described how some of the users of the $30 permits are restaurant workers.

Stephen Kunselman (Ward 3) worried that a contract could be just one year and that it wouldn’t meet the intent of the ordinance. He was curious about how it’s expected to play out. Rampson noted that the proposed policy the council would be considering cited a contract term of 15 years. Kunselman wondered why that wouldn’t be written into the ordinance instead of considered as a separate policy. Rampson explained that if the council wanted to change the policy it would be easier to change it if it’s a policy as opposed to going through the process of an ordinance change. [An ordinance change requires two readings before the council and a public hearing. ]

Kunselman then asked why the city didn’t make the all development in the downtown area exempt from parking requirements. Rampson explained that the issue was well-debated for two years, as part of the A2D2 rezoning process. She noted that there is only a parking requirement for bonus square-footage. Whatever can be built “by right” is parking exempt.

Kunselman said he was not comfortable contracting out the requirement using the public parking system. He contended that makes it into a quasi-private system.

Sabra Briere (Ward 1) asked Pollay to describe contracts with existing developments for parking space – Village Green City Apartments, Cornerhouse Lofts, McKinley Towne Center and others. Briere concluded that what was being proposed was not novel. Pollay concurred that it’s going on now. Mayor John Hieftje added that it’s a use of the parking system as an economic development tool. Jane Lumm (Ward 2) said the proposal made sense to her – it addresses the basic objective of providing for the parking needs of projects and it provides flexibility.

Outcome: The council gave final approval to the parking regulation change, over dissent from Mike Anglin (Ward 5).

Payment in Lieu of Parking

Also in front of the council for its consideration was the policy by which the minimum required parking component of developments in the downtown D1 and D2 zoning districts can be satisfied off-site from the development. The city is using the acronym CIL for “contribution in lieu” to describe the option. The idea could be familiar to some readers as PILOP, or “payment in lieu of parking.”

If not provided on-site, the policy allows some of the minimum required parking spaces to be provided with one of two basic strategies: (1) commit to a 15-year contract with the Ann Arbor Downtown Development Authority to purchase monthly permits in the public parking system at a rate 20% greater than the ordinary price; or (2) pay $55,000 up front before a certificate of occupancy is issued. [.pdf of parking payment in lieu policy]

The Ann Arbor DDA board had approved its recommendation of a PILOP policy over a year and half ago, at its July 7, 2010 board meeting. The DDA’s involvement in the policy formation stems from its role as operator of the city’s public parking system, under contract with the city of Ann Arbor. Part of the methodology in the CIL policy entails that the DDA will research the availability of spaces in the public parking system, when a developer applies for permits under the CIL option.

Outcome: Without deliberating explicitly on the item, which the council did not reach until nearly the end of the meeting, the council approved the policy over the dissent of Mike Anglin (Ward 5).

Arbor Hills Crossing Revisions

The council was asked to consider revisions to the building plans for Arbor Hills Crossing, a proposed retail and office complex at Platt and Washtenaw.

The project involves tearing down three vacant commercial structures and putting up four one- and two-story buildings throughout the 7.45-acre site – a total of 90,700-square-feet of space for retail stores and offices. Three of the buildings would face Washtenaw Avenue, across the street from the retail complex where Whole Foods grocery is located. The site would include 310 parking spaces.

According to the planning staff memo accompanying the resolution, the buildings are proposed to remain in the same configuration that the city council approved at its Nov. 21, 2011 meeting. But now, more brick and masonry surfaces and less steel is being proposed. In the city planning staff’s view, the changes – which also include some changes to windows and vertical elements – could not be made as administrative amendments, and needed the city council’s approval.

Stephen Kunselman (Ward 3) confirmed that some of the new material included full brick, with some split-faced block. He asked for some additional clarification about decisions to use certain materials in certain locations.

Jane Lumm (Ward 2) noted that with more brick and masonry, it appears to be a nice improvement. Given that there were no staff comments on it, she wanted to know what planning manager Wendy Rampson’s thoughts were. Rampson said there weren’t standards for these changes – but she characterized the new materials as “less edgy.”

Outcome: The council unanimously approved the Arbor Hills Crossing changes.

Noodles & Co. Site Plan

On the April 2 agenda was a site plan for a new Noodles & Co. restaurant at 2161 W. Stadium Blvd. – site of the former Sze-Chuan West, a building adjacent to Bell’s Diner and Stadium Hardware.

The proposal calls for demolishing the existing 4,300-square-foot restaurant and building a new 2,679-square-foot one-story restaurant with a 615-square-foot enclosed patio at the front of the building. The 1.15-acre site is located on the west side of West Stadium, south of Liberty. The project would also reconfigure the existing parking lot and provide additional landscaping.

The planning commission had given a unanimous recommendation for approval at its March 6, 2012 meeting.

During the project’s public hearing, Thomas Partridge said the city should require businesses to contribute to public transportation for seniors and handicapped people.

Mike Anglin (Ward 5) asked if the future use of the parcel would be as a restaurant, something that planning manager Wendy Rampson confirmed. He asked her if she thought 27 parking spaces was adequate for a restaurant. She confirmed that 27 spaces would meet the minimum requirement.

Anglin asked what zoning would be applied to the parcel once is was divided, as proposed in the site plan. Rampson explained that the zoning wouldn’t change. The division of the parcel would be between the carwash and the restaurant site. The zoning wouldn’t change – it would reconfigure the ownership of the parcel.

Outcome: The council unanimously approved the Noodles & Co. site plan.

Les Voyageurs Site Plan

Another site plan was on the agenda – for a renovation to the Habe Mills Pine Lodge, owned by the Society of Les Voyageurs.

The site had also required a rezoning, which the city council had approved at its March 19, 2012 meeting.

The property owned by the society, at 411 Long Shore Drive near Argo Pond, had been previously zoned public land, even though it’s owned by a private entity. The council approved the rezoning as a planned unit development (PUD), which would allow the group to build a 220-square-foot, one-story addition to the rear of the existing lodge, on its east side. The site plan for that addition was the subject of the council’s April 2 action.

The nonprofit society is a University of Michigan student and alumni club, focused on nature and the outdoors. Named for French-Canadian voyageurs of the Great Lakes fur trade, it was founded in 1907 and is one of the university’s oldest fraternal student groups. The lodge was built in 1925 – about the same time as the city’s first zoning ordinance and zoning map. Five student members live at the lodge, and society alumni gather there for potluck Sunday dinners from September to April.

During the public hearing, Thomas Partridge criticized Les Voyageurs, contending that it didn’t live up to its public responsibilities. He called it a semi-secret society. At a previous meeting, he’d criticized the group based on its French name.

Partridge’s comments led mayor John Hieftje to share his memory of paddling in a canoe on Lake Superior during a historical reenactment. Sabra Briere (Ward 1) made a quip about the society being “elitist” – a reference to Partridge’s remarks.

Outcome: The council unanimously approved the Les Voyageurs site plan.

Police Detective Vehicles

The council considered the authorization of the purchase of a total of four vehicles for police detectives for a total of $97,383. One of the vehicles was sourced from Red Holman Buick/GMC – a 2012 GMC Acadia for $28,620. The other three were purchased from Signature Ford – a 2013 Ford Explorer for $26,951, a 2013 Ford Taurus for $24,098 and a 2012 Ford Fusion for $17,714.

The city’s contract with the police unions requires that vehicles used by union members will not be driven more than 80,000 miles or six years, whichever comes first. And in the case of the four vehicles being acquired, they’ll replace vehicles that will reach the six-year age limit in the next year. The vehicles that are being retired will be sold at the next city vehicle auction.

Outcome: Without discussion, the council approved the purchase of the detective vehicles on two separate votes.

Fire, Police Retirement/Health

In front of the council for its consideration was initial approval to changes to the employee retirement system to accommodate recent changes in the collective bargaining agreement with the city’s police command officers union and firefighters union. The council also considered initial approval to changes to the retirement health care benefits to reflect changes to those collectively bargained agreements.

Changes to the retirement system include: (1) increasing the pension contribution of command officer members to 6% from 5%; (2) implementing a pick-up feature as permitted by the Internal Revenue Code for the pension contributions of firefighters and command officers, converting their 6% pre-tax contribution to a 6% post-tax contribution; (3) increasing the vesting and final average compensation requirements for firefighters hired after July 1, 2012; and (4) implementing a federal provision that allows eligible retired public safety officers to pay qualified health insurance premiums directly from their pensions.

The change to the retiree health care system will stipulate that new hires after July 1, 2012 will be eligible for an access-only health care plan at the time of their retirement, instead of a city-paid retiree health care plan.

As changes to the city’s ordinances, the resolutions passed by the council on April 2 will require a second and final approval after a public hearing at a subsequent meeting.

Outcome: The council gave initial approval to both employment issues without discussion.

0.17 BAC as Separate Crime

The council considered initial approval to a change in its traffic ordinance to adopt a provision of the Michigan Vehicle Code that establishes driving with a blood alcohol content (BAC) of more than 0.17 as a separate offense from operating under the influence.


Ann Arbor operating under influence by month (Image links to higher resolution file.)

The Michigan legislature had previously changed the MVC, which Ann Arbor has adopted, to include the separate charge for the very high BAC of 0.17. However, the legislature did not at that time change the Home Rule Cities Act to allow cities to impose the greater penalty of 180 days in jail and/or $700 fine that comes with the BAC 0.17 charge. But in February 2012, the legislature made the change to the Home Rule Cities Act that allows for that penalty. Ann Arbor is making the change to its local ordinance in order to be able to charge drivers with the 0.17 offense.

Records from January 2010 through February 2012 provided to The Chronicle by CLEMIS (Courts and Law Enforcement Management Information System) show three instances of 0.17 offenses – which could not be charged as a separate offense. The CLEMIS records for the same time period also show three reports for the moderately higher BAC level of .08, which could already be charged separately from operating under the influence.

Ordinance changes must receive an initial approval by the Ann Arbor city council, followed by a public hearing and a second and final approval at a subsequent meeting.

Outcome: The council gave initial approval to the BAC ordinance change without discussion.

Communications and Comment

Every city council agenda contains multiple slots for city councilmembers and the city administrator to give updates or make announcements about issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda.

Comm/Comm: Litigation, Praise for City Attorney

During communications time, Tony Derezinski (Ward 2) mentioned that the city had received very good news, having won some recent rounds of litigation. That included an appeal of a lawsuit originally filed against the city on Oct. 12, 2009 by HDC – the entity whose proposal had been selected in response to a request for proposals for development of the Fifth & William site of the old YMCA building (which has since demolished). The original purchase option agreement for the land was approved on Sept. 6, 2005. The YMCA building formerly offered 100 units of single resident occupancy (SRO) units. When the city council had previously made the decision to purchase the property from the YMCA, many councilmembers expressed a commitment to preserving those 100 units of affordable housing. Subsequently, the building became uninhabitable and the residents had to be relocated. Affordable housing units were part of HDC’s William Street Station proposal.

After encountering various difficulties and attempting to modify its project, HDC and the city agreed to a new purchase option agreement that included specific milestones. That new agreement was signed on Oct. 12, 2007. It included the milestone of obtaining a demolition permit from the city by Oct. 15, 2007. When HDC filed its application for the permit, it contends it was informed by city staff that only the owner of a property could be granted a demolition permit – so HDC could not obtain the permit because it was not the owner. The city still owned the property. HDC complained that the condition was one that was impossible to meet.

A resolution considered by the city council on Nov. 5, 2007 to modify the purchase option agreement by extending it failed on a 5-6 vote. On the side of extending were councilmembers Joan Lowenstein, Leigh Greden, Margie Teall, and Wendy Woods. Against extending the agreement were John Hieftje, Bob Johnson, Ron Suarez, Stephen Rapundalo, Stephen Kunselman, and Christopher Easthope. The failure to extend was the basis of one of the counts alleged in the lawsuit filed in 2009 – that the city failed to act in good faith and deal fairly. In broad strokes, the court said that HDC, as a sophisticated developer, should have known better than to sign an agreement with an impossible condition, and that the city had not breached its contract.

When asked to summarize the case, which the city also won on appeal, city attorney Stephen Postema did not mention the issues involving good faith, but focused on another aspect of HDC’s allegations, which involved a claim that the city was motivated to terminate HDC’s purchase option, in order to prevent handicapped people from living at the site. The court found that the set of facts that HDC had pled did not warrant further discovery. Postema called it a “complete exoneration of the council.”

As a part of his communications, Derezinski asked his colleagues to give Postema a round of applause – for prevailing in the lawsuit as well as for an award he’d received from the Michigan Municipal League.

Comm/Comm: Connecting William Street

Sandi Smith (Ward 1) gave an update on the Connecting William Street project. She indicated that the survey was closed, and while the Ann Arbor Downtown Development Authority had expected to get around 1,000 responses, they’re received almost double that. They’d heard from around 200 organizations, as well as individuals. The process would continue in an information-gathering phase, she said, before going into a scenario-building phase. The project status is described in detail on the Ann Arbor DDA website.

During public commentary at the conclusion of the meeting, Alan Haber told the council that he was distressed by the characterization that Smith had given about the survey responses and contended that what people had actually called for was more open space, more green space and more space for people to gather.

Comm/Comm: Fuller Road Station

Mike Anglin (Ward 5) revisited a topic he’s brought up recently during communications time – Fuller Road Station. He complained that while there’s been no official vote on the overall project, taxpayer money is still being spent on the project. He pointed to an Oct. 9, 2009 Fuller Road Station Concept Plan report prepared by the consultant JJR, which identifies two utility systems as needing relocation. [The council voted on the sewer project on June 20, 2011 and reconsidered it at Anglin's request on July 5, 2011. The first vote was unanimous in support, while Anglin dissented on the second vote.] He criticized the failure to identify on the agenda the relationship between the sewer relocation project to the Fuller Road Station project. And he contended that the sewer work was motivated by the Fuller Road Station project.

Sabra Briere (Ward 1) responded to the remarks Anglin made by saying that the answer the council had received from city staff was that the work – replacing the sewer lines – needed to be done. Staff had acknowledged that they had moved the timing up a year or two. Many of the councilmembers had supported the work, she said, because it needed to be done.

Comm/Comm: Taxicab Board

Stephen Kunselman (Ward 3) noted that the taxicab board had met the previous Thursday. It had only three members – they’re looking for two more. He made a plea to the public to step up and serve.

Comm/Comm: Affordable Services

Thomas Partridge introduced himself as a Washtenaw County and city of Ann Arbor Democrat, an advocate for the most vulnerable in the city and the state. He called attention to a lack of affordable housing, transportation and health care. He also lamented the lack of enforcement against illegal drugs. What would Jesus advocate on the eve of Easter? he asked. Under the first African American president of the United States, we need to press for the building of a Great Society with access for all to public transportation, free or low cost health care services, and low cost housing, he said.

Comm/Comm: Women’s Rights, Sexual Assault Prevention

Esperanza Orozco began by saying that the subject matter of her remarks was very sensitive. She introduced herself as a survivor of sexual assault. She told the council that her assailant had been locked up for a few days but he’d then been let back out on the streets of Ann Arbor. She said that the man had violated a personal protection order (PPO) several times. She reported that she and some friends of hers had posted flyers with a picture of the man with the intention of alerting the public to the fact that he’s a rapist and a batterer.

But the police showed up and threatened them with charges, Orozco contended, and posed a question: What if the man put up flyers saying she was a prostitute? Orozco said that neither of her friends had been sex workers. In any case, she objected to the comparison of a batterer and to a sex worker. She asked if the city was okay saying, “Shut up, woman!” and silencing victims of rape. She asked if were okay that “the city won’t do shit and if we do something, then we’re vigilantes.” She answered her own question by saying, “If ya’ll don’t do something, I guess we should.” She concluded by saying, “Rape needs to be dealt with. Cut it out or cut it off.”

Orian Zakai spoke in support of Orozco, describing Orozco’s brave decision to leave her partner. The man is still out there and has violated his PPO. When the police report was filed, Zakai said she was perplexed about the way things progressed. Orozco had to tell a difficult story in a public space, with officers coming and going and officers chatting with each other. The front desk officer told her a detective would call a day or two later. Four days later, he had forwarded the prosecutor the file, without making any further inquiry. No charges were filed. She was told to file a report if he violated the PPO, which he did twice. And on the third time AAPD were able to arrest him, but Orozco and her friends were told he would probably be let out in a day or two. They felt frustrated and scared. They were promised a detective would call, when the man was let out. They learned he was out again when they saw him and he waved and smiled.

Alexandra Hoffman alerted the council to the Thursday, April 5 Take Back the Night march. She then read a list of tips for preventing sexual assault that are “guaranteed to work”:

  1. Don’t put drugs in people’s drinks in order to control their behavior.
  2. If you see someone walking by themselves, leave them alone.
  3. If you pull over to help someone with car problems, remember not to assault them.
  4. Never open an unlocked door or window uninvited.
  5. If you’re in an elevator and someone else gets in, don’t assault them.
  6. Remember, people go to the laundry to do their laundry. Don’t attempt to molest someone who’s alone in a laundryroom.
  7. Use the buddy system – if you’re not able to stop yourself from assaulting people, ask a friend to stay with you while you’re in public.
  8. Always be honest with people. Don’t pretend to be a caring friend in order to gain the trust of someone you plan to assault.
  9. Don’t forget you can’t have sex with sometime unless they’re awake.
  10. Carry a whistle. If you’re worried that you might assault someone by accident, you can hand it to a friend so they can blow it for you.

Hoffman noted that the satirical list is meant to show that advice is often directed at victims instead of assailants. No violence is private and there are no innocent bystanders, she said.

Occupy Patriarchy

Occupy Patriarchy T-shirt worn by Alexandra Hoffman.

Mary Kate Bachler introduced herself as a University of Michigan architecture student and Ann Arbor resident. She reported to the council her experience on March 8, International Women’s Day, participating in a public action in front of city hall. The public demonstration was to raise awareness of International Women’s Day, and issues involving sexual assault.

The demonstrators asked people to hang paper flowers on the “phallic statue” [a reference to the Herbert Dreiseitl sculpture] which seasonally is also used as a fountain. The text on the paper flowers asked: What would you do with $750,000 (the cost of the sculpture). The group of 10 attempted to hang the paper flowers around the sculpture. They were met by the chief of police and the mayor, she said, and were told that they had to remove the flowers from the sculpture and a nearby tree, because the sculpture was public art and the tree was public property. Bachler interpreted “public” in that context to mean “off limits to the public.” She ventured that while women walk in fear of being assaulted due to a lack of effective police patrol, the most important players in the city were busy thwarting peaceful protests.

Later, mayor John Hieftje responded to the description that had been given of the International Women’s Day Demonstration. He said that he and then-chief Barnett Jones had told the demonstrators in the nicest way possible that things couldn’t be hung on the artwork. He said he’d reminded people that none of the dollars for that art, as far as he knew, could be spent on a general fund expense. He expressed puzzlement that people would protest against art, and indicated he was still trying to understand that. [Some of the demonstrators carried signs indicating that the city should have spent money on organizations like SafeHouse Center rather than on the Dreiseitl sculpture.]

Thomas Partridge led off his commentary at the conclusion of the meeting, which ended at midnight, by quipping that he felt that way earlier in the meeting it would have been advisable to have a recess to give a few minutes of access to the NCAAA basketball championship game. But there have been some serious issues on the agenda, he said. On the eve of Easter, he said, he was again calling on Ann Arbor to be a friendlier and more respectful society. The story told by the young ladies during their attempt to gain attention on International Women’s Day was shocking, he said. He called for an apology from the mayor and police chief. He called for an effective investigation and prosecution. The disrespectful and insulting treatment of young ladies and the failure to protect the interests of all the young ladies of the city is not something to be glossed over, he said. He called on the council to pass a resolution at its next meeting condemning their treatment.

Odile Hugenot Haber told the council that when she met Orozco, she was shocked to know that when she called SafeHouse, there was no space for her there. [SafeHouse is a shelter for victims of domestic violence.] She talked about the fact that the country was fighting wars that cost so much money, and mentioned her concern that Camp Take Notice, a homeless enclave, might be shut down. As more women are abused and assaulted, she said, there’s no place for them to go. Spending a million dollars on art shows misplaced priorities, she said.

Alan Haber said he was there to support his “sisters.” When a month is set aside to raise awareness of sexual assault, he said, it really does need attention; our vision should be a culture of peace and nonviolence. The need for a demonstration shows that we’re a long way away from that, he said. He attributed the problem to a male patriarchal vision.

Comm/Comm: Speaking Rules

Sandi Smith (Ward 1) made a general request that councilmembers remain aware of the speaking rules and said that she felt the rules were being stretched.

By way of background, those rules include a limit of two speaking turns on any question, with a time limit of five minutes and three minutes for the first and second turns, respectively. As chair of the meeting, it’s the mayor’s responsibility to enforce the rules. However, under Robert’s Rules, which guide the council’s meeting conduct, unless there’s an explicit council rule addressing an issue, any councilmember could interrupt with a “point of order” to force the chair to enforce a rule. Later in the week, Smith showed The Chronicle a stopwatch app that she’d downloaded for her smartphone.

Comm/Comm: Lack of Prosecution

Henry Herskovitz told the council that on Feb. 4, 2012 his group was conducting its weekly vigil (demonstrating against support for Israel outside the Beth Israel synagogue) when he’d noticed someone removing a sign from a windshield of one of his group’s cars and then placing it in his own car. As the man was getting in the driver’s seat, Herskovitz asked him to return the sign. Herskovitz told the council that the man had told him he wasn’t going to get his sign back. So Herskovitz’s group called the Ann Arbor police department dispatch and reported the license plate and car description.

Officer Kevin Kleitsch came out and made a report, Herskovitz said. The case was referred to the detective bureau, assigned to Craig Lee. A month later, Herskovitz said, he looked at a photo lineup and correctly identified the man who’d taken the sign. In spite of the correct identification of the man, and the fact that the license plate was registered to the man that he’d identified, his group had been notified that the city attorney had decided not to prosecute.

Herskovitz described his group as peaceful protestors who’d been in this position before. He then gave other examples, in one case going back to 2006, where offenses were committed against members of his group, and arrests were made, but did not result in prosecution. Without enforcement of such offenses, Herskovitz said that their First Amendment rights are weakened. His group looked to the council to affirm its pledge to uphold the U.S. Constitution.

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, John Hieftje, Christopher Taylor, Carsten Hohnke.

Absent: Marcia Higgins.

Next council meeting: April 16, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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  1. By Jack Eaton
    April 9, 2012 at 2:59 pm | permalink

    “Stephen Kunselman (Ward 3) said he vaguely remembered the city missing out on the first round of TIGER grants because the city did not have a shovel-ready project for which it could apply. Pirooz said that wasn’t entirely true. The city did have a shovel-ready project, but the federal government had other priorities, he said.”

    In a memo dated February 26, 2008, the Senior Project Manager for the bridges project informed Mr. Pirooz:

    We have not able to move forward on the preliminary design of the bridge over S. State Street or the Ann Arbor Railroad tracks because we are waiting for the 4th Ward City Council members to nominate and confirm a Citizens Advisory Committee to assist us with the public engagement process.
    . . .
    We have estimated that it will take about 2 to 3 years to prepare for bridge replacement including the public engagement and internal project review process; the preliminary and final design of the bridges and needed approach work; and the development of a funding plan for the project.

    When the initial Obama stimulus plan offered the first TIGER grants, the 2 to 3 years of preparation mentioned in the 2008 memo had not concluded. According to Wikipedia: “Applications for grants had to be submitted by September 15, 2009, with grants to be announced by February 17, 2010.” [link]

  2. April 9, 2012 at 3:28 pm | permalink

    Re: [1]

    From Chronicle coverage dating back three years ago “Building Bridges“:

    At the Feb. 1, 2009 city council caucus, Marcia Higgins (Ward 4) expressed her frustration that the Stadium bridge project had not been a part of the stimulus package wish list submitted by the city of Ann Arbor – because the design had not been done and was not “shovel ready.”

    I think you can identify three pertinent federal funding opportunities. The first one, which the city missed because it didn’t have a shovel-ready project. A second one where Ann Arbor had the shovel-ready plans and was able to apply, but was not selected. A third one that resulted in a successful application. There’s a partial timeline (through the second opportunity) in this coverage: [link]

    In light of that context, I don’t think there is a simple, “clean narrative.” You can’t say, “The only reason we didn’t get federal funding before we eventually did was that we didn’t have a shovel-ready project.” And you also can’t say, “The problem was not that we didn’t have a shovel-ready project, the problem was that the federal government had different priorities.”

    I think Pirooz’s response to Kunselman that it wasn’t entirely true that the city failed to get federal money because it didn’t have a shovel ready project was probably an attempt to highlight the second funding opportunity, without denying the first one had happened. Plus, I don’t think the very first stimulus funding for which such a project might have qualified was part of the TIGER program, which makes a clean narrative even more difficult.

  3. By Jack Eaton
    April 9, 2012 at 4:12 pm | permalink

    Thank you for the reminder about the timeline you previously provided. I think that timeline is missing a date early in the last decade (2001 or 2002, I think) when the City budgeted what I recall was about $1 million (again,just from memory) for the expenses related to planning the replacement of the two bridges. I recall being mystified that after budgeting $1 million and having 7 or 8 years, the City had no finished plan.

    Also, your timeline notes that the public engagement meetings were held in October and December 2009. The project manager’s memo said the public meeting had to happen before the project plan could be completed. Those public meetings were held after the September 15, 2009 deadline for submitting shovel ready projects for TIGER grants. I had assumed the information in the memo was correct about what needed to be done before the plan was finished (shovel ready?) and I compared that with the due date for shovel ready projects. I apologize if I made an incorrect assumption.

  4. April 9, 2012 at 5:20 pm | permalink

    Here is the Chronicle story where the Feb. 26, 2008 memo regarding the Citizens’ Advisory Committee was quoted: [link]

  5. By Tom Whitaker
    April 9, 2012 at 10:49 pm | permalink

    What I don’t understand is why the City chose to neglect street resurfacing for several years in order to save money for the possibility of having to contribute more for the Stadium Bridges if State and Federal money did not come through. Why not simply issue bonds for the bridges, if and when the money was needed? As we’ve seen, this Mayor and Council have had no problem borrowing money for far less urgent projects like the underground parking structure, the “justice center,” and the wastewater plant (which they had also saved up tens of millions for, raising sewer rates along the way). They also borrowed money against the Greenbelt millage–so why not borrow against the streets millage (if necessary)?

    I disagree that the streets have been improving over the past 8-9 years. I’m an Ann Arbor resident of almost 34 years and I recall when a car company once used Geddes Road to test the suspensions of its cars. I thought at the time that Ann Arbor’s streets couldn’t get any worse, but the past two years is truly the worst I’ve ever seen them and they are bad all over town.

    It appears the City has dug itself a big pothole that is going to take years to climb out of.

  6. April 10, 2012 at 12:17 am | permalink

    Re: [5] and the idea of issuing bonds for stadium bridge replacement

    One challenge would be to identify a revenue source to cover the debt service. But one approach would be to ask voters to support such a bond with a millage. In 1973, when the Stadium bridge over State Street needed repair, that’s the scenario that unfolded. From September 2009 Chronicle coverage:

    The city council of 2009 faced some similar problems to those confronted by the council of 1973. Ann Arbor residents in early 2009 began to hear increasingly dire reports about the condition of the Stadium Boulevard bridges over State Street and the railroad tracks. There’s a chance that a large chunk of the money for the $22 million bridge replacement project could come from federal funds. If not, the city would need to use money from its street repair millage, or possibly follow the example of the 1973 city council, which was also faced with a Stadium bridges repair problem.

    In 1973, the council asked voters to approve a bond sale specifically to repair the Stadium bridges – voters said yes. Of the proposed bond sale on the ballot, $800,000 was for creation of a citywide bicycle system using existing streets and new pathways, and $360,000 was designated for repair of the Stadium bridges.

    In 1973, one of the arguments for repairing the Stadium bridges, but not widening State Street to accommodate four lanes of traffic, was that the city’s expanded bus system would reduce the need for such a widening. That expanded bus system was called “Teltran” due its planned heavy reliance on a dial-a-ride approach – riders would call and a mini-bus would appear, delivering people door-to-door.

    So in the context of evaluating the merits of the city council’s decision-making on the bridge repair, I think I agree with Whitaker’s point. Paraphrasing that point, it’s not reasonable to equate these: (1) advocacy for earlier bridge repair with local funds; and (2) advocacy for use of just street millage dollars on bridge repair. But that equivalence makes for a much “cleaner” narrative for someone interested in portraying the council’s decision making as the “right” decision.

    It’s also worth noting that in making the case for the TIGER grant, the city pointed to some large billionish number of dollars of impact the bridge has on the regional economy. So in evaluating the merit of the city’s decision to delay repair, waiting for federal dollars, I think it’s fair to prorate that estimated regional economic impact by the diminished capacity of the bridge, dating from its weight restrictions and lane reductions. Then you get some estimate of the negative economic impact of repairing the bridge later instead of sooner.

    So, I think it’s probably still possible to make a case that the strategy the city council actually pursued was reasonable, but it’d require more to make that case than anything that was said Monday night at the council table. You’d talk about the chances a millage to support a bond would have passed and the fact that “regional economic impact” does not immediately put actual dollars into actual city funds that can be used to fix bridges. But in the end you’d wind up with an argument for reasonableness, not some conclusion that it would have been insane to have pursued any other course.

  7. By Gale Logan
    April 10, 2012 at 12:56 am | permalink

    I guess I disagree with selling bonds to pay for the bridges. These have been tough times and I respect the fact city council has not asked for a tax increase but has instead made the city government much more efficient. See the April Observer. (Except a little increase for the sidewalks but that was for something new, the city had not done it previously.)

    There has been a revenue stream or streams for all other borrowing including the police and courts building, something I thought was needed.

    They could not have used the streets millage for long term borrowing, it comes up every 5 years and that still would have meant less money for the streets so no gain in street quality. As it is street resurfacing is a few years behind but the money is being spent in an accelerated fashion so the city will catch up in a couple of years. And, no new taxes.

  8. By Alan Goldsmith
    April 10, 2012 at 12:43 pm | permalink

    “Later, mayor John Hieftje responded to the description that had been given of the International Women’s Day Demonstration. He said that he and then-chief Barnett Jones had told the demonstrators in the nicest way possible that things couldn’t be hung on the artwork. He said he’d reminded people that none of the dollars for that art, as far as he knew, could be spent on a general fund expense. He expressed puzzlement that people would protest against art, and indicated he was still trying to understand that. [Some of the demonstrators carried signs indicating that the city should have spent money on organizations like SafeHouse Center rather than on the Dreiseitl sculpture.]”

    So the Mayor actually comes out and protects the Urinal Artwork personally? And is clueless why protestors would object to money going for ‘art’ while there’s a waiting list for SafeHouse? He sounds about as in touch with women’s issues as the Republican Party.

  9. By Alan Goldsmith
    April 10, 2012 at 12:44 pm | permalink

    “She ventured that while women walk in fear of being assaulted due to a lack of effective police patrol, the most important players in the city were busy thwarting peaceful protests.”

    And this surprises you?

  10. By Gale Logan
    April 10, 2012 at 3:20 pm | permalink

    Mr. Goldsmith: I think you miss the point the mayor may have been trying to make, the fact that the protest was itself pointless. None of the money that goes to art can come from the general fund. So, why protest against art if the money can’t be spent on Safe House?

    It has been repeated many times in the press that none of the money that goes into the art fund can be used for general fund expenses. In fact the ordinance says so.

  11. By Rod Johnson
    April 10, 2012 at 4:22 pm | permalink

    This is the “buckets” argument that many of us feel is specious. The buckets are simply just the current system of financing, not some sort of unchangeable god-given principle. What Council decrees, council can un-decree. Some people in fact feel that the ordinance is the problem. Percent For Art could be replaced by Percent for Human Services. Protesters arguing for that may be quixotic, given the Council Party’s current disconnect, but that doesn’t mean they’re wrong.

  12. By Gale Logan
    April 10, 2012 at 4:37 pm | permalink

    I don’t think you are right about that Mr. Johnson. Council didn’t “decree” the accounting rules they have to follow. Those were determined by the state and best accounting practices. The money that goes to art comes from dedicated funds.

    The key to understanding the art fund is that the art has to be part of the project. Human services can’t be part of a project, it’s not even bricks and mortar.

  13. April 10, 2012 at 4:40 pm | permalink

    Re: [10]

    From The Chronicle’s report of the Nov. 21, 2011 council meeting:

    During deliberations, city staff confirmed that at least a portion of the public art allocation required from the new municipal building (aka the police/courts building) could be associated with the general fund – about $50,000 out of the $250,000. [This is for art in the interior of the building, and is separate from the outdoor fountain designed by German artist Herbert Dreiseitl.]

    As part of her Ward 2 election campaign, Jane Lumm had argued that general fund dollars were connected to supporting public art at the new municipal building – an idea that had been, until Monday’s meeting, poo-pooed by some councilmembers, including mayor John Hieftje, who had said no general fund money had been used for the public art program.

    Regarding the assertion that general fund monies aren’t used in the public art program — “… In fact the ordinance says so.”

    Yes, it’s accurate that “the ordinance says so,” because the council revised the ordinance at at its Dec. 5, 2011 meeting, with an amendment that excludes the public art ordinance from applying to any capital projects funded out of the general fund.

    So there’s isn’t a “clean narrative” available here. It’s a nuanced and complex argument and deserves better, I think, that the flip response the mayor typically gives to it. It’s a response that asks his audience to believe that those who question the city’s priorities in setting up a public art program in this way just don’t grasp the basics of how the general fund works, or perhaps are just crazy.

    Here’s some observations:

    (1) The city of Ann Arbor’s leaders have invested a vast amount of time, effort and energy to establish a public art program that has a funding stream that’s not subject to the same year-to-year budgetary process that general fund expenditures go through, and which need not compete for attention with other kinds of expenditures on a year-to-year basis.

    (2) The city of Ann Arbor’s leaders have invested a vast amount of time, effort and energy to develop an evaluation metric for funding non-profits (which provide human services) out of the general fund that is subject each and every year to the politics of an intense budgetary process, and which must compete for attention with all the other general fund expenditures each and every budget year.

    Based on (1) and (2), I don’t think it’s crazy to conclude that Ann Arbor’s leaders place a higher priority on acquiring physical pieces of art than they do on support services for poor unfortunate people. I’m not saying that this apparent priority ranking is a logical consequence of (1) and (2) that comes out when you apply modus ponens — I’m just saying it ain’t crazy.

    So when the mayor sees a demonstration in front of city hall that’s critical of a piece of art — as a kind of proxy for the priority ranking reflected in (1) and (2) — I think that he would better serve the community to come up with a more respectful response than to try to educate people about the general fund, or to profess puzzlement that anybody could possibly protest art. In my view, the mayor’s response — which trades on a vague accusation of ignorance or bizarre thinking — diminishes our public discourse, which ultimately diminishes our community.

  14. By Rod Johnson
    April 10, 2012 at 4:48 pm | permalink

    Accounting practices? I can’t tell if you’re being disingenuous. Council “decreed” Percent for Art. Protesters aren’t advocating that the city should violate the law as it stands; they’re arguing the city should change its spending priorities, which might involve changing the law. This may be hard for younguns to believe, but there once was a time–aye, ’twas all of five years ago now–when no Percent for Art ordinance existed! I’m pretty sure that it’s not part of the physical fabric of reality yet.

    I’m actually a supporter of using public funds for art, but this whole “our hands are tied, we can’t mix the buckets” argument is an embarrassment. The buckets are our own creation.

  15. By Rod Johnson
    April 10, 2012 at 4:51 pm | permalink

    As usual, Dave gives a deeper and more nuanced–wiser, in fact–response than anything I’ve heard in this discussion so far. Thank you.

  16. By Gale Logan
    April 10, 2012 at 5:21 pm | permalink

    Dave: Thank you for pulling up the Sept. 09 article.

    Yep, $50,000 “could” have gone toward art from the general fund. But even if it did it could only be spent once. It would have paid for 1/2 a police officer for one year or perhaps it could have augmented the human services budget for one year.

    The point remains that the funding that goes to art from the streets millage or the utilities could not ever have gone to Safe House. Those funds can only go toward capital projects related to the source of funds. Even if the art program were dissolved Safe House could not be a beneficiary.

    On your other point, I don’t see how it would be possible for them to set up funding for human services except from the general fund.

  17. By Gale Logan
    April 10, 2012 at 7:36 pm | permalink

    RE 14: I don’t think city council has said “our hands are tied.” They have said no funds will come out of the general fund to pay for art.

    A valid argument would be that it takes funding away from the very capital projects that enable it. They should argue that it takes money (less than 1% overall) away from utilities and streets, etc., capital projects.

    But instead most argue that it somehow hurts police or fire or human services funding or specifically in this case, Safe House, when in fact it does not, could not.

  18. By Tom Whitaker
    April 10, 2012 at 9:52 pm | permalink

    I think a very strong argument could be made that a Percent for Public Safety program would be just as legally defensible as the Percent for Art Program (although we will never get an official legal opinion on this or the Art program from the current administration). After all, capital projects require police and fire protection both while under construction and then for the life of the project thereafter. The City already skims an “administrative fee” off of bond issues, millages and grants, which more than covers any overhead, why not skim off a public safety fee, too?

    So, if Council were to discontinue Percent for Art, which it created unilaterally, and then unilaterally create a Percent for Public Safety program, that money would ease the burden on the general fund which supports police and fire. The resulting savings could then be applied to human services.

    As has been said above, it’s a question of priorities. If a public safety program is not possible for some reason, then maybe in these lean times, our millage monies ought to be going toward the purposes they were collected for, like streets, parks, solid waste, sewage, etc. instead of monumental art projects that only inspire resentment from those who are suffering from severe budget cuts made elsewhere.

  19. April 11, 2012 at 8:28 am | permalink

    CM Steve Kunselman asked the city attorney some years ago whether it would be legal to create similar funds, I think he mentioned “Percent for Homeless”. Presumably he was issued one of those secret opinions. It would be nice to know what it said.